MOTHER ADMITS TO RESTRICTING THE CHILD’S TIME WITH THE FATHER WHICH CONTRAVENES THE CONSENT ORDERS
Locke & Jamison [2020] FCCA 3292 (17 November 2020)
This is a contravention application filed by the father where the mother admitted the breach of orders to not resume the child’s time with the father.
Facts:
This is a contravention application brought by the father of a three-year-old child, X. On 21 November 2019, the parties entered into consent orders which relevantly provided for the child to live with the mother and spend time with the father.
The mother admitted the breach of orders but said that she had a reasonable excuse. The mother says, and this is not challenged, that on 2 August 2020 when the child came into her care, he was irritated around his penis or genitals, and when she put the child in the bath later on he complained that his penis hurt and he looked in pain. She said that the end of his penis looked a little bit red and inflamed.
The mother reported the matter to the child protection hotline. The child was examined at the hospital and nothing untoward was seen. Somewhat disappointingly there is no medical evidence in the mother’s affidavit.
Territory Families wrote a letter to the mother saying that the outcome of the investigation was that no abuse or neglect had been found. Nevertheless, she did not resume the child’s time with the father, so she continued to contravene the orders.
Issue: Did the mother had a reasonable excuse to contravene the consent orders?
Held:
The mother was not cross-examined as to the truthfullness of her statements in her affidavit. Accordingly, the court accepts what she says as true. The test for a finding of contravention is, of course, the ordinary civil standard. However, bearing in mind that the matter is in a sense quasi-criminal, that is it has a penalty attached, arguably, the court ought to only find a contravention if the court is comfortably satisfied of those probabilities of the question in issue, that is, that the mother has without reasonable excuse contravened the orders.
In the circumstances of this case, the court is not satisfied that she has behaved unreasonably. The onus of proof in a contravention application rests on the party alleging the contravention. In the case of a defense based on reasonableness, the onus rests with the party asserting the conduct was reasonable.
Conclusion: The court finds that the mother has not contravened the orders made on 21 November 2019.
